Magbanua v. State

• Decision Date: 31 May 2019
• Docket Number: No. 1D19-1875,1D19-1875
• Citation: 281 So.3d 523
• Parties: Katherine MAGBANUA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

281 So.3d 523

Katherine MAGBANUA, Petitioner,

v.STATE of Florida, Respondent.

No. 1D19-1875

District Court of Appeal of Florida, First District.

May 31, 2019

Kristen A. Kawass of Law Offices of Kawass, P.A., Miami, for Petitioner.

Ashley Moody, Attorney General; Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals; and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent State of Florida.

John F. Lauro and Michael G. Califano of Lauro Law Firm, Tampa, for Non-Party Wendi J. Adelson.

Rowe, J.

Katherine Magbanua is being tried for the murder of Daniel Markel. Magbanua seeks a writ of certiorari to quash an order prohibiting her from deposing Wendi J. Adelson, Markel's ex-wife and a material witness. Magbanua contends that the order departs from the essential requirements of the law because Adelson did not provide good cause to prohibit her deposition. She asserts that Adelson's blanket invocation of her Fifth Amendment privilege and claim that requiring her to appear for a deposition would embarrass, harass, or inconvenience her did not support issuance of a protective order. Magbanua argues that her inability to depose Adelson significantly impairs her ability to prepare a proper defense. Because Magbanua has not demonstrated material injury that cannot be corrected on direct appeal, we are constrained to dismiss the petition for lack of jurisdiction.

Background

In 2013, Markel and Adelson were engaged in a contentious legal battle over the custody of their two minor children. Adelson wanted to relocate with the children to South Florida, where her family lived. But she moved the children from their home in Tallahassee without court authorization. Markel obtained a court order requiring that the children return to Tallahassee and preventing their relocation. This outcome upset Adelson and her family.

A year later, on July 18, 2014, Markel was sitting in his garage in his parked car when he was shot in the head. Later that same day, Adelson was interviewed for over eight hours by police. Adelson indicated during the recorded interview that someone could have committed the murder thinking they were helping her. She also divulged that her brother, Charlie Adelson, joked about hiring a hit man to kill Markel.

Over the next two years, investigators developed information that Magbanua, Charlie Adelson's former girlfriend, conspired with others to procure the murder of Markel. Magbanua is alleged to have enlisted Sigfredo Garcia (the father of Magbanua's children), and Luis Rivera (Garcia's friend) to travel from Miami to Tallahassee to kill Markel. During the investigation, police obtained rental car receipts, GPS records showing the movements of the rental car, video surveillance, and cell phone records appearing to place Rivera and Garcia at the crime scene at the time of the murder.

Investigators also intercepted communications before and after the murder between Magbanua and Charlie Adelson and between Charlie Adelson and Adelson's mother (Donna Adelson). Investigators learned that after the murder, Magbanua received $ 13,000 in payments from entities connected to the Adelsons. Magbanua also received over $ 56,000 in cash payments from unknown sources that investigators believe were made in connection with Magbanua's role in procuring the murder. Magbanua, Rivera, and Garcia were charged in Markel's murder. Rivera pleaded guilty to second-degree murder and agreed to cooperate with the State. Magbanua and Garcia are awaiting trial. No member of the Adelson family has been charged.

Wendi Adelson, however, has been identified as a material witness for the State in Magbanua's trial. She is listed as a Category A witness¹ and the State identified numerous items connected with Adelson, including an iPad, photos of her vehicle, cell phone records, credit card records, banking records, her recorded police interview, and her signed consent to search form. Six weeks before trial, Magbanua served Adelson with a subpoena to appear for a discovery deposition.

Adelson moved for a protective order four weeks before the scheduled trial date, stating that she intended to assert her Fifth Amendment privilege in response "to any substantive questions" asked during the deposition. Adelson admitted that she would testify at trial if subpoenaed by the State because she would be granted immunity for her testimony. She argued that good cause existed for issuing the protective order because requiring her to appear at a deposition would unnecessarily "inconvenience, embarrass, and harass" her.

Magbanua opposed the motion for protective order and moved to compel Adelson's appearance at the deposition or, in the alternative, to exclude Adelson's testimony at trial. Magbanua argued that Adelson did not show good cause to prevent the deposition. As a material witness for the State, Adelson could not assert a blanket Fifth Amendment privilege and avoid being deposed. Instead, Magbanua argued that Adelson should be compelled to appear and could then invoke her privilege on a question-by-question basis.

The trial court granted the protective order, ruling only that requiring Adelson to assert her privilege as to individual questions would "serve no useful purpose." The order did not limit the scope of the deposition, but rather prohibited the deposition altogether. Adelson's claims of inconvenience, embarrassment, or harassment were not addressed. While the court denied Magbanua's motion to compel and motion to exclude Adelson's trial testimony, it stated the issue could be reconsidered at trial. Magbanua seeks certiorari review of the orders.

Analysis

Certiorari is an extraordinary remedy that "should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders." Jaye v. Royal Saxon, Inc. , 720 So.2d 214, 214-15 (Fla. 1998) (quoting Martin-Johnson, Inc. v. Savage , 509 So.2d 1097, 1098 (Fla. 1987) ). Appellate courts are limited in their ability to review non-final orders by certiorari because "piecemeal review of nonfinal trial court orders" impedes "the orderly administration of justice." Id. at 215. To obtain certiorari relief, Magbanua was required to show that the trial court's order departs from the essential requirements of the law and that she has suffered a material injury that cannot be corrected on direct appeal.

Eutsay v. State , 103 So.3d 181, 182 (Fla. 1st DCA 2012).

Magbanua argues that her inability to seek pretrial discovery from Adelson significantly impairs her ability to prepare for trial and the error in granting the protective order could not be corrected on appeal. The purpose of the pretrial discovery rules is to avoid trial by ambush. Scipio v. State , 928 So.2d 1138, 1144 (Fla. 2006) ("Florida's criminal discovery rules are designed to prevent surprise by either the prosecution or the defense. Their purpose is to facilitate a truthful fact-finding process." (quoting Kilpatrick v. State , 376 So.2d 386, 388 (Fla. 1979) )). Almost certainly, the protective order barring the deposition of Adelson deprives Magbanua of her right to question a material witness who has indicated that she will testify on behalf of the prosecution. Any questions that Magbanua may be able to pose to Adelson at trial would be strictly limited to the scope of the direct examination by the State. Patrick v. State , 104 So.3d 1046, 1057 (Fla. 2012) (holding that cross-examination of an adverse witness is limited to matters related to credibility or germane to direct examination). And as the State indicated at oral argument, it intends to narrowly tailor its questioning of Adelson to the identification of evidence and the establishment of the motive for the murder, including the timeline of the divorce and custody proceedings. Thus, Magbanua would be given little latitude in her cross-examination of Adelson because her questions would be limited to the narrow categories of information the State elicits at trial.

If Magbanua was permitted to take Adelson's deposition, she would not be restricted in the questions that could be posed. And even though Adelson could invoke her Fifth Amendment privilege in response to any questions, the very invocation of the privilege by Adelson in response to specific questions may inform Magbanua's trial preparation. Depending on how Adelson testifies at trial, the blanket prohibition against Magbanua's obtaining pretrial discovery may very well result in the material injury that Florida Rule of Criminal Procedure 3.220 was designed to prevent. State v. Kuntsman , 643 So.2d 1172, 1174 (Fla. 3d DCA 1994). But material injury is not enough to support the granting of certiorari relief. Instead, Magbanua was required to demonstrate that any injury she may suffer could not be corrected on appeal.

Magbanua asserts that her inability to depose Adelson results in a material injury that cannot be corrected on appeal because a reviewing court could not determine how Adelson would have answered questions posed to her during the deposition. Nor could the impact of her answers on Magbanua's trial preparation be measured. In support of her argument, Magbanua cites decisions in civil cases where certiorari relief was granted after a party was prevented from obtaining pretrial discovery. The holdings in those cases find irreparable harm when a party is prohibited from taking the deposition of a material witness because there is no practical way to determine after judgment what the testimony of the witness would have been or how it would have affected the result of the trial. See Solonina v. Artglass Int'l, LLC , 256 So.3d 971 (Fla. 3d DCA 2018) ; Bush v. Schiavo , 866 So.2d 136 (Fla. 2d DCA 2004).

But Magbanua's reliance on those decisions is misplaced. This Court, on multiple occasions, has denied certiorari relief where a criminal defendant sought review of an order barring pretrial discovery, holding that any material injury could be remedied on direct...